4.24: Formal offers to settle
4.29: Costs consequences of formal offer to settle
10.30: When costs award may be made
10.33: Court considerations in making costs award

Case Summary

Associate Chief Justice Rooke issued a decision on Costs in Kon Construction Ltd v Terranova Developments Ltd, 2014 ABQB 625, indicating reasons would follow. With respect to Rule 10.30(1), Rooke A.C.J. noted that “the ordinary rule applies, namely that costs follow ‘the event’”. Justice Rooke further noted that, normally, it is only the successful party to a proceeding that is entitled to a Costs award, but that the successful party need not succeed on every point and a finding of “substantial success” is sufficient.

Justice Rooke examined whether the successful party, Kon, was entitled to double Costs, pursuant to a Formal Offer it had submitted. His Lordship noted that, pursuant to Rule 4.24 and Rule 4.29, double Costs will be awarded when a Formal Offer is made for the steps taken from the date of the Formal Offer until the end of Trial, and in some cases for “further activity after the trial until a decision is made” and in additional cases for “steps taken until the Judgment Roll is settled”. In this case, Justice Rooke awarded Kon double Costs for all fee portions of Costs awarded, up to the end of Trial.

Kon sought enhanced Costs pursuant to Rule 10.33, alleging that the Defendant’s counsel’s conduct unnecessarily lengthened the Trial. The Court stated that extending a Trial beyond what is reasonable may result in an increased Costs award. However, Rooke A.C.J. declined to grant increased Costs in this case since it was not clear that the lengthening of the Trial was an abuse of process. His Lordship awarded Costs in accordance with the prior decision.

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